Testimonial Is As Testimonial Does

Transcription

1 Florida Law Review Volume 66 Issue 1 Article 9 Testimonial Is As Testimonial Does Ben Trachtenberg Follow this and additional works at: Part of the Constitutional Law Commons, and the Evidence Commons Recommended Citation Ben Trachtenberg, Testimonial Is As Testimonial Does, 66 Fla. L. Rev. 467 (). Available at: This Essay is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized administrator of UF Law Scholarship Repository. For more information, please contact outler@law.ufl.edu.

2 Trachtenberg: Testimonial Is As Testimonial Does TESTIMONIAL IS AS TESTIMONIAL DOES Ben Trachtenberg * INTRODUCTION I. HOW IS TESTIMONIAL HEARSAY DEFINED? II. HOW SHOULD TESTIMONIAL HEARSAY BE DEFINED? III. NOW WHAT? CONCLUSION INTRODUCTION In Crawford v. Washington, 1 the Supreme Court jettisoned a quartercentury of Sixth Amendment Confrontation Clause jurisprudence by announcing the death of Ohio v. Roberts 2 and its progeny. The Court announced that its new interpretation of the Confrontation Clause was in keeping with the original understanding of the Sixth Amendment. 3 Under the new regime, a prosecutor cannot offer testimonial hearsay against a criminal defendant unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. 4 As the Crawford Court intimated was likely, the Court subsequently held in Whorton v. Bockting that the admission of nontestimonial hearsay does not raise any Confrontation Clause problems whatsoever. 5 Despite the tremendous importance of distinguishing testimonial hearsay from nontestimonial hearsay in the new system, the Crawford majority chose to leave for another day any effort to spell out a * Associate Professor, University of Missouri School of Law. I thank Professor Richard D. Friedman for taking the time to write such a robust response to my Article and the Florida Law Review for finding room for his piece and this reply. Further, I thank colleagues who took the time to read an earlier draft of this Essay U.S. 36 (2004) U.S. 56 (1980). 3. Crawford, 541 U.S. at 60 (heeding suggestions to revise [the Court s] doctrine to reflect more accurately the original understanding of the Clause ); id. at 52 n.3 (disputing arguments made by Chief Justice Rehnquist, who wrote separately, that the majority opinion misconstrued the original meaning of the Sixth Amendment ). 4. Id. at U.S. 406, 420 (2007). 467 Published by UF Law Scholarship Repository, 1

3 Florida Law Review, Vol. 66, Iss. 1 [], Art FLORIDA LAW REVIEW [Vol. 66 comprehensive definition of testimonial. 6 In the decade since Crawford declared testimony to be the touchstone of the Confrontation Clause, courts from the humblest criminal trial court to the Supreme Court itself have struggled with two problems. First, defining testimonial has proven difficult. Second, in certain cases, the results of defining testimonial as Crawford would seem to require have proven unappealing. Justice Antonin Scalia, the author of the majority opinion in Crawford and the most vocal cheerleader of its new doctrine, has consequently had trouble maintaining a majority of Justices for what would seem to be straightforward applications of the opinion. 7 Professor Richard D. Friedman is troubled by this fact. I am not. The difficulties confronting Justice Scalia should not surprise observers of the so-called originalist project. A continuing and, at least in my opinion, unsolvable problem with a system of constitutional interpretation based on original meaning or original understanding is that reasonable persons can disagree about what originalist theory commands in nearly any particular case. The U.S. Constitution was written some time ago, and the contemporary meaning (or understanding, or whatever) of its key phrases is obscure to modern readers. The problem becomes especially acute when judges and law clerks with little to no training as historians practice originalism. And the acute problem becomes dire indeed when judges with strong ideological commitments in particular cases practice originalism. 8 The recent decision in Shelby County v. Holder is among the most vivid 6. Crawford, 541 U.S. at 68. The problems with this choice were apparent at the time. See id. at 75 (Rehnquist, C.J., concurring) ( [T]he thousands of federal prosecutors and the tens of thousands of state prosecutors need answers as to what beyond the specific kinds of testimony the Court lists [as examples of testimonial hearsay] is covered by the new rule. They need them now, not months or years from now. (citation omitted)). 7. See, e.g., Bullcoming v. New Mexico, 131 S. Ct. 2705, (2011) (applying the Crawford doctrine to surrogate analyst testimony with divisive results). 8. Compare, for example, Justice Scalia s vote in United States v. Morrison, 529 U.S. 598, 615 (2000) (holding that gender-motivated violence had only an attenuated effect on interstate commerce and that a federal right of action for victims was beyond the Commerce Clause power of Congress), with his concurring opinion in Gonzales v. Raich, 545 U.S. 1, 35 (2005) (Scalia, J., concurring) (holding that Congress could criminalize, under its Commerce Clause power, the intrastate, homegrown production and medical use of marijuana). A similar comparison could be made between his votes in Raich and in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2642 (2012) (concerning the health care insurance mandate). Consider also his vote in Adarand Constructors v. Peña, 515 U.S. 200, 224 (1995), in which he joined an opinion claiming that the Fifth Amendment (ratified in 1791) prohibited most racial discrimination by the federal government. 2

4 Trachtenberg: Testimonial Is As Testimonial Does 2014] TESTIMONIAL IS AS TESTIMONIAL DOES 469 illustrations of the phenomenon. 9 A general critique of originalism is beyond the scope of this brief reply Essay; I will focus henceforth on the particular problems with the Crawford doctrine. I. HOW IS TESTIMONIAL HEARSAY DEFINED? Absent a definition of testimonial, Crawford lacks coherence. An evaluation of the Crawford doctrine therefore required some patience. For example, how would the new regime treat recordings of 911 calls? What about lab reports with absent authors? Autopsies? What if, say, police find a mortally wounded man in a gas station parking lot and ask him about the shooter, who remains at large? As the Court wrestled with these questions, it revealed that the definition of testimonial might be no more predictable than the definition of a firmly rooted hearsay exception. In Williams v. Illinois, 10 the Court considered the admissibility of a lab report stating that the DNA profile of blood taken from a rape defendant matched the profile of semen taken from the victim s vaginal swabs. 11 The result was a mess. Justice Samuel Alito wrote the primary opinion (for himself and three other Justices, two of whom were part of the Crawford majority) 12 and concluded that the lab report was nontestiminial. 13 Justice Clarence Thomas provided the fifth vote for nontestimonial, using a definition of the term shared by no other justice. 14 Writing for herself and three other Justices, Justice Elena Kagan dissented, arguing that under Crawford and subsequent Confrontation Clause cases, this is an open-and-shut case. 15 Justice 9. See 133 S. Ct. 2612, 2618 (2013) (applying the previously irrelevant principle of equal sovereignty to the Voting Rights Act of 1965). For a thorough discussion of how principled originalism is inconsistent with the Shelby County majority, see Brief Amici Curiae of Constitutional Law Scholars and Constitutional Accountability Center in Support of Respondents at 14, Shelby County v. Holder, 133 S. Ct (2013) (No ), 2013 WL , at *4 14; see also Holder, 133 S. Ct. at (Ginsburg, J., dissenting) (providing additional historical background on the intent of the framers of the Fifteenth Amendment and Congress s passage and continued reauthorization of the Voting Rights Act) S. Ct (2012). 11. Id. at Justices Breyer and Kennedy joined both the Alito opinion in Williams and the majority in Crawford. Id.; Crawford v. Washington, 541 U.S. 36, 37 (2004). Also joining was Chief Justice Roberts, who, like Justice Alito, was not on the Court when it decided Crawford. Williams, 132 S. Ct. at Williams, 132 S. Ct. at See id. at (Thomas, J., concurring); id. at 2265 (Kagan, J., dissenting) ( [N]o other Justice joins [Thomas s] opinion or subscribes to the test he offers. ). 15. Id. at (Kagan, J., dissenting); see also Bullcoming v. New Mexico, 131 S. Ct. 2705, 2714 n.6 (2011) (Ginsburg, J.) (offering a definition of testimonial for herself and Published by UF Law Scholarship Repository, 3

5 Florida Law Review, Vol. 66, Iss. 1 [], Art FLORIDA LAW REVIEW [Vol. 66 Kagan noted as well that because Justice Thomas for reasons different than those of the dissenters reject[ed] every aspect of [the plurality s] reasoning and every paragraph of its explication, Justice Alito s opinion is more like a dissent than a plurality for purposes of setting forth current Confrontation Clause law. 16 Two members of the Crawford majority, Justices Ginsburg and Scalia, joined Justice Kagan in her dissent. 17 In sum, as far as lab reports go, it remains difficult to define testimonial nearly ten years after Crawford. In Michigan v. Bryant, 18 the Supreme Court considered the admission against a murder defendant of statements made by the victim to police. 19 The victim, being dead, was not available for crossexamination, nor had he survived long enough for Bryant s counsel to conduct a prior deposition. 20 Basic Crawford doctrine accordingly provides that if the victim s statements to police were testimonial, the Confrontation Clause forbids their use. 21 Writing for the majority, Justice Sotomayor held that under the circumstances the victim was near death, and the police sought information from him to find the missing shooter the primary purpose of the police questioning was responding to an ongoing emergency, not acquiring evidence for a prosecution. 22 The majority therefore deemed the challenged statements nontestimonial. 23 Justice Scalia lamented, [T]oday s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. 24 Justice Scalia is correct that post-crawford Confrontation Clause jurisprudence is confusing at best. Even summarizing the current blackletter doctrine in an intelligible manner is a complex undertaking. For example, the evidence law casebook that I assign issued a new edition in December 2012, and it incorporated voluminous Sixth Amendment materials that in recent years had appeared in three other Justices similar to that set forth in Justice Kagan s dissent in Williams, 132 S. Ct. at 2266). 16. Williams, 132 S. Ct. at 2265 (Kagan, J., dissenting). 17. Id. at Also joining was Justice Sotomayor, who, like Justice Kagan, was not on the Court when Crawford was decided. Id S. Ct (2011). 19. Id. at See id. 21. Crawford v. Washington, 541 U.S. 36, 52 (2004). For procedural reasons decided under Michigan state law, the Supreme Court in Bryant did not address a potential dying declaration exception to Crawford. See Bryant, 131 S. Ct. at 1151 n Id. at , Id. at 1150, Id. at 1168 (Scalia, J., dissenting). 4

6 Trachtenberg: Testimonial Is As Testimonial Does 2014] TESTIMONIAL IS AS TESTIMONIAL DOES 471 supplements. 25 Excluding the introductory material describing the pre- Crawford world, the Confrontation Clause section now spans 100 pages. 26 Subsections have titles such as Cracks in the Crawford Coalition and Firm Footholds and the Confrontation Flowchart. 27 The Crawford majority acknowledged that its new doctrine would cause interim uncertainty. 28 The accuracy of that statement depends upon a generous definition of interim. II. HOW SHOULD TESTIMONIAL HEARSAY BE DEFINED? Professor Friedman is not happy with the results of Williams and Bryant. 29 He is also disappointed by Davis v. Washington, 30 in which the Court held that statements to police officers accusing someone of a crime are not always testimonial. 31 If the statement is made primarily to resolve an ongoing emergency, then the Crawford doctrine does not prohibit admission against a criminal defendant. 32 Professor Friedman s preferred holding that a statement to a known police officer accusing another of a crime is per se testimonial 33 would certainly be simpler to administer than the rule fashioned in Davis and its companion case, Hammon v. Indiana. Indeed, the dispute in Michigan v. Bryant between Justice Sotomayor s majority opinion and Justice Scalia s pained dissent largely concerned a disagreement about the proper application of Davis. 34 One problem with Professor Friedman s suggested per se rule is that it would lead to a highly unpleasant result in Davis. Specifically, the panicked 911 call by Michelle McCottry, a domestic assault victim 35 which plainly would have been admissible under Ohio v. Roberts because it falls within the firmly rooted hearsay exceptions for 25. See GEORGE FISHER, EVIDENCE vii (3d ed. 2013) (explaining that with confrontation caselaw in disarray, among other reasons, the book s size has swelled despite the author s best intentions). 26. See id Id. at 624, 674 ( [W]ith so little certainty about the role of reliability in confrontation caselaw, it is useful to plot patches of firm ground. ) U.S. 36, 68 n.10 (2004). 29. See Richard D. Friedman, The Mold that Shapes Hearsay Law, 66 FLA. L. REV. 433, 441 (2014) U.S. 813 (2006). 31. Id. at Id. 33. See Friedman, supra note 29, at 441 n See 131 S. Ct. 1143, 1150 (majority opinion) (quoting Davis in opening paragraph while announcing holding); id. at (Scalia, J., dissenting) (quoting Davis extensively and arguing that [i]nstead of clarifying the law, the Court makes itself the obfuscator of last resort ). 35. Davis, 547 U.S. at Published by UF Law Scholarship Repository, 5

7 Florida Law Review, Vol. 66, Iss. 1 [], Art FLORIDA LAW REVIEW [Vol. 66 excited utterances and present sense impressions 36 would become inadmissible. Now sometimes letting a few criminals off the hook is the price we pay for constitutional liberties. But one can easily understand the hesitance among certain Justices to hold that their newfangled Confrontation Clause doctrine means that Mr. Davis walks. 37 Their hesitance is especially understandable because the purported originalist reasoning in Crawford is hotly contested. 38 It is one thing to say, This rule may not seem perfect, especially in this case, but it s required by the Constitution, obedience to which is essential to the rule of law. It is another to say, I m not certain that the Constitution requires this rule, but it serves good purposes and generally has positive effects for example, it mostly keeps out unreliable evidence and mostly lets in reliable evidence so we should tolerate the bad result in this specific case as a price for keeping a generally good rule. It seems to me quite different to say, I m not certain that the Constitution requires this rule, and I m also not sure that it generally has positive effects, but we should tolerate a bad result in this case to preserve the rule regardless. If one is a principled originalist, willing to take the Constitution as it comes and always obey its original meaning, at least that s an ethos. But there are no Supreme Court Justices who match that description. 39 Every Justice in my mind, quite sensibly recognizes the problems with originalism. In the first place, the doctrine often cannot provide much guidance because the historical sources are so obscure and our modern nation so different from that of the founding and reconstruction generations. Second, the results of principled originalism would occasionally be so offensive to widely shared beliefs about core American values that no one could stomach them. 40 For example, in 36. FED. R. EVID 803(1) (2); Idaho v. Wright, 497 U.S. 805, 827 (1990) (listing excited utterances or statements made for purposes of medical diagnosis or treatment as examples of reliable hearsay not barred by Roberts). 37. Nearly the entire Court joined the Davis majority opinion, which was written by Justice Scalia. Justice Thomas wrote separately, concurring in the judgment in part and dissenting in part. Davis, 547 U.S. at See, e.g., Thomas Y. Davies, Revisiting the Fictional Originalism in Crawford s Cross-Examination Rule : A Reply to Mr. Kry, 72 BROOK. L. REV. 557, (2007); Thomas Y. Davies, Not The Framers Design : How the Framing-Era Ban Against Hearsay Evidence Refutes the Crawford Davis Testimonial Formulation of the Scope of the Original Confrontation Clause, 15 J.L. & POL Y 349, 354 (2007); Randolph N. Jonakait, Witnesses in the Confrontation Clause: Crawford v. Washington, Noah Webster, and Compulsory Process, 79 TEMP. L. REV. 155, 157 (2006); Daniel Shaviro, The Confrontation Clause Today in Light of its Common Law Background, 26 VAL. U. L. REV. 337, (1991). 39. Justice Clarence Thomas may be the lone exception, especially in recent years. 40. If nothing else, Supreme Court nominees accurately asserting certain originalist positions at Senate hearings would have trouble winning confirmation. 6

8 Trachtenberg: Testimonial Is As Testimonial Does 2014] TESTIMONIAL IS AS TESTIMONIAL DOES 473 Bolling v. Sharpe, 41 which was decided the same day as Brown v. Board of Education, 42 the Supreme Court prevented the District of Columbia from running segregated public schools. 43 Personally, I believe that Bolling cannot be justified by an appeal to the original meaning of the Fifth Amendment, and I find even less plausible theories that the Fourteenth Amendment (while talking exclusively about the states) somehow silently amended the Fifth Amendment s restrictions on the federal government. Because I am not an originalist, I have the luxury of not caring. Bolling s result is obviously correct, and that s that. 44 If your constitutional theory rejects Bolling, that means something is wrong with your theory, not the Court s opinion. 45 Recall that in 2007, the Court stated explicitly that the Crawford doctrine is not concerned with the reliability of evidence. As the unanimous Court stated in Whorton v. Bockting: Crawford overruled Roberts because Roberts was inconsistent with the original understanding of the meaning of the Confrontation Clause, not because the Court reached the conclusion that the overall effect of the Crawford rule would be to improve the accuracy of factfinding in criminal trials. Indeed, in Crawford we recognized that even under the Roberts rule, this Court had never specifically approved the introduction of testimonial hearsay statements. Accordingly, it is not surprising that the overall effect of Crawford with regard to the accuracy of factfinding in criminal cases is not easy to assess. 46 The Court continued: [W]hatever improvement in reliability Crawford produced in this respect must be considered together with Crawford s elimination of Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial statements. Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding U.S. 497 (1954) U.S. 483 (1954). 43. Bolling, 347 U.S. at In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. Id. 45. Consider also Loving v. Virginia, 388 U.S. 1, 12 (1967) (holding that antimiscegenation laws are unconstitutional). I will stand with Mr. & Mrs. Loving over the original understanding of the Fourteenth Amendment every time U.S. 406, 419 (2007) (citation omitted). Published by UF Law Scholarship Repository, 7

9 Florida Law Review, Vol. 66, Iss. 1 [], Art FLORIDA LAW REVIEW [Vol. 66 reliability. Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability. 47 Professor Friedman has no problem with the Court s lack of concern with reliability. Responding to my invocation of Dyer the mariner who testified against Walter Raleigh, repeating the out-of-court statement of an anonymous Portuguese gentleman implicating Raleigh in treason Professor Friedman is not troubled. 48 More recent cases reveal that at least some of the Justices feel differently; they cannot accept that their new Confrontation Clause doctrine cares not a whit about the reliability of evidence admitted against criminal defendants. In Bullcoming v. New Mexico, Justice Kennedy wrote a dissent (joined by Chief Justice Roberts and Justices Breyer and Alito), in which he lamented that under Crawford, states often are foreclosed now from contributing to the formulation and enactment of rules that make trials fairer and more reliable. 49 In Michigan v. Bryant, Justice Sotomayor wrote for the majority (consisting of herself and the four dissenters from Bullcoming), In making the primary purpose determination [which controls whether the statement is testimonial and therefore whether potentially affected by the Confrontation Clause], standard rules of hearsay, designed to identify some statements as reliable, will be relevant. 50 Other opinions have expressed similar interest in reviving reliability as a part of Confrontation Clause doctrine Id. at Friedman, supra note 29, at 458 ( I acknowledge that under my approach, the confrontation right would probably not exclude evidence of the statement but I do not regard this as troublesome. ) S. Ct. 2705, 2727 (2011) (Kennedy, J., dissenting) ( Whether those statutes could provide sufficient indicia of reliability and other safeguards to comply with the Confrontation Clause as it should be understood is, to be sure, an open question. The point is that the States cannot now participate in the development of this difficult part of the law. ) S. Ct. 1143, 1155 (2011). This logic is not unlike that justifying the excited utterance exception in hearsay law. Statements relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition, are considered reliable because the declarant, in the excitement, presumably cannot form a falsehood. Id. at 1157 (citation omitted) (quoting pre-restyled FED. R. EVID. 803(2)). 51. See Williams v. Illinois, 132 S. Ct. 2221, 2243 (2012) (plurality opinion) ( [R]eliability is a salient characteristic of a statement that falls outside the reach of the Confrontation Clause. ); id. at 2252 (Breyer, J., concurring) ( [S]hould the defendant provide 8

10 Trachtenberg: Testimonial Is As Testimonial Does 2014] TESTIMONIAL IS AS TESTIMONIAL DOES 475 To sum up: Crawford s constitutional underpinnings are questionable, it sometimes excludes reliable evidence (previously admissible under prior Confrontation Clause decisions) that might help convict guilty defendants, and it sometimes admits unreliable evidence (heretofore barred under prior Confrontation Clause decisions) at American criminal trials. Further, lower courts have trouble applying it because the Supreme Court cannot agree on a meaning of testimonial. Is it any wonder that the Justices have attempted to evade the doctrine? III. NOW WHAT? I have argued that under Ohio v. Roberts, the Confrontation Clause saved us from the admission of certain unreliable evidence against criminal defendants that is now admissible. 52 The Supreme Court has stated that if hearsay is nontestimonial, then a lack of reliability does not present a Confrontation Clause problem post-crawford. 53 And it seems that while the Court has nonetheless recently turned its attention once again to reliability, so far that gaze has served only to define certain purportedly reliable evidence as nontestimonial and accordingly admissible. It has not yet been employed to deem unreliable evidence testimonial and accordingly inadmissible. This doctrinal fudging that somehow exclusively assists the prosecution is perhaps the inevitable result of the Court adopting a criminal procedural rule that occasionally prevents the conviction of guilty defendants. Like the Miranda Rule and the warrant requirement, 54 the Crawford doctrine invites meddling by Justices unhappy with the results in particular cases. Because the Court is highly unlikely to adopt per se rules enshrining Professor Friedman s vision of the Confrontation Clause into constitutional law, continued attention should be devoted to the admission under Crawford of unreliable hearsay against criminal defendants. The Justices have shown their willingness to tinker with the definition of testimonial when it allows the conviction of the good reason to doubt the laboratory s competence or the validity of its accreditation, then the alternative safeguard of reliability would no longer exist and the Constitution would entitle defendant to Confrontation Clause protection. ). 52. See Ben Trachtenberg, Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation Clause, 64 FLA. L. REV. 1669, (2012). 53. See Whorton v. Bockting, 549 U.S. 406, 419 (2007). 54. See, e.g., Berghuis v. Thompkins, 560 U.S. 370, (2010) (creating a broad presumption of waiver of Miranda rights); United States v. Leon, 468 U.S. 897, 905 (1984) (creating a good faith exception to the exclusionary rule in search and seizure cases); New York v. Quarles, 467 U.S. 649, 655 (1984) (creating a public safety exception to Miranda Rule); Nix v. Williams, 467 U.S. 431, 444 (1984) (creating an inevitable discovery exception). Published by UF Law Scholarship Repository, 9

11 Florida Law Review, Vol. 66, Iss. 1 [], Art FLORIDA LAW REVIEW [Vol. 66 apparently guilty. 55 With the originalist façade cast aside, it seems only fair that they consider glosses on the Crawford doctrine that would decrease the likelihood of convicting the innocent. Such reconsideration would presumably require the rejection of its holding that nontestimonial hearsay never implicates the Confrontation Clause, 56 although perhaps sufficiently creative Justices could find a way to define certain unreliable hearsay as testimonial despite the lack of any motive to assist prosecutors when the hearsay was uttered. Most coventurer hearsay also called lawful joint venture hearsay will have a difficult time fitting into any plausible definition of testimonial. The Crawford majority explicitly stated that its new Confrontation Clause theory would not affect evidence admitted under the coconspirator statement exception to the hearsay rule. 57 The lawful joint venture interpretation of the coconspirator statement exception posits that the word conspiracy in Federal Rule of Evidence 801(d)(2)(E) refers broadly to all joint enterprises, whether legal or illegal. 58 I have attacked this revisionist interpretation of the exception in some depth; 59 I will not revisit the sins of coventurer hearsay in this space. I will, however, thank Professor Friedman for agreeing with my view that this doctrine extends the [coconspirator statement exception] beyond its intended meaning. 60 Regardless of whatever light the lawful 55. Instead of saying this hearsay evidence is testimonial, but prosecutors can use it anyway, the Court has massaged the definition of testimonial so as not to include certain evidence that might appear testimonial under a straightforward reading of Crawford. The result is the same: The evidence is not barred by the Sixth Amendment. 56. See Whorton, 549 U.S. at 420 (contrasting how [u]nder Roberts an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability, but [u]nder Crawford... the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability ). The problem created by Whorton mirrors that identified in the dissent in Bullcoming. 131 S. Ct. 2705, 2727 (2011) (Kennedy, J., dissenting). Whereas Crawford and Bullcoming discourage states from developing reliable systems for the creation of certain kinds of evidence because even reliable testimonial evidence will be excluded, Whorton tells states that certain evidence (i.e., nontestimonial hearsay) is freely admissible despite its unreliability. Whorton, 549 U.S. at See FED. R. EVID. 801(d)(2)(E); Crawford v. Washington, 541 U.S. 36, 56, 59 n See Trachtenberg, supra note 52, at See Brief for Professors of Evidence as Amici Curiae Supporting Petitioners at 2 4, Elashi v. United States, No (June 20, 2012), cert. denied, 133 S. Ct. 525 (2012); Ben Trachtenberg, Coconspirators, Coventurers, and the Exception Swallowing the Hearsay Rule, 61 HASTINGS L.J. 581, 583 (2010). 60. Friedman, supra note 29, at 463. This seems as good a place as any to assuage Professor Friedman s concern that when the going gets tough for the prosecution, I wish to bend principle and admit evidence that would otherwise be unacceptable. Id. at 456. When I write that necessity is the real justification for the coconspirator statement exception, I am 10

12 Trachtenberg: Testimonial Is As Testimonial Does 2014] TESTIMONIAL IS AS TESTIMONIAL DOES 477 joint venture theory shines on Confrontation Clause jurisprudence, the revisionist take on the coconspirator statement exception is simply erroneous statutory interpretation a clear misreading of the Federal Rules of Evidence. After this agreement, we part company as to the significance of the new hearsay doctrine and its relationship to new Confrontation Clause doctrine. Rather than redefine the hearsay rule to better match a vision of the Confrontation Clause that even post-crawford Justices have recently found unpalatable, those concerned with the admission of unreliable evidence against criminal defendants may wish to turn our attention to strengthening the hearsay rule. For example, while I find it vaguely preposterous that the word conspiracy in Rule 801(d)(2)(E) has been redefined as pretty much any joint undertaking by multiple federal courts of appeal, 61 the law of those circuits is what it is, not what I wish it to be. If the Supreme Court does not correct the errant interpretation of the federal coconspirator statement exception, Congress should amend Rule 801 to make clear that conspiracy means conspiracy. 62 Other new (that is, not firmly rooted ) hearsay exceptions prone to admitting lousy evidence (that is, evidence without indicia of reliability ) may also justify amendments to federal and state evidence rules. State legislators and judges in particular should remember that the U.S. Supreme Court is not the supreme arbiter of state evidence law. My concern about the admission of unreliable hearsay perhaps illustrates my old-fashioned thinking about evidence. Some modern authors argue that the hearsay rule and its jumble of exceptions are not worth the trouble they cause. 63 This debate raises important empirical describing reality, not announcing my approval. Many legal rules are grounded on theories I dislike. 61. See, e.g., United States v. El-Mezain, 664 F.3d 467, 502 (5th Cir. 2011) ( Although the rule speaks of statements made in furtherance of a conspiracy, we have recognized that admissibility under Rule 801(d)(2)(E) does not turn on the criminal nature of the endeavor. Instead, a statement may be admissible under Rule 801(d)(2)(E) if it is made in furtherance of a lawful joint undertaking. (citation omitted)); United States v. Gewin, 471 F.3d 197, 201 (D.C. Cir. 2006) ( [O]ur precedents hold that the doctrine [from Rule 801(d)(2)(E)] is not limited to unlawful combinations. ). 62. Federal Rule of Evidence 801(d)(2)(E), which exempts from the hearsay rule a statement offered against an opposing party that was made by the party s coconspirator during and in furtherance of the conspiracy, could be amended to include the word unlawful in the phrase in furtherance of the [unlawful] conspiracy. Because conspiracies by their nature involve unlawful acts, see BLACK S LAW DICTIONARY (9th ed. 2009) ( An agreement by two or more persons to commit an unlawful act.... ), this amendment would not be necessary if courts read the existing rule correctly. 63. See, e.g., Matthew Caton, Abolish the Hearsay Rule: The Truth of the Matter Asserted at Last, 26 ME. B.J. 126, 127 (2011) (arguing that the perceived dangers associated with Published by UF Law Scholarship Repository, 11

13 Florida Law Review, Vol. 66, Iss. 1 [], Art FLORIDA LAW REVIEW [Vol. 66 questions: Is hearsay less reliable than other forms of evidence freely admitted in American courts? Is hearsay admitted under existing exceptions more reliable than other hearsay? 64 Do juries overvalue hearsay, or do they appropriately discount it when deciding cases? The research of psychologists has provided valuable insights in recent years concerning how fact finders evaluate various sorts of evidence, 65 and their wisdom could help advance the hearsay debate. Natural experiments may be possible, comparing jurisdictions that have maintained traditional hearsay law with those that have relaxed the rule. IV. CONCLUSION In Confrontation Clause jurisprudence, reliability has proven resilient. Respected scholars, and even a unanimous Supreme Court, have declared its irrelevance. Yet it keeps showing up in opinions, with a majority of justices having recently joined one opinion or another asserting its importance. Considering how much of evidence law is devoted to keeping unreliable evidence from juries, 66 as well as evidence whose probative value is substantially outweighed by its unfairly prejudicial effect, 67 the continued attention to reliability should not cause much surprise. If a new constitutional doctrine purports to reject reliability as a criterion for the admissibility of evidence, scholars and judges concerned about fair and accurate trials will prove difficult to convince. hearsay evidence no longer justify the exclusion of relevant hearsay evidence in civil litigation ). 64. See FED. R. EVID. 803(1) (2) advisory committee s note (questioning the traditional justification for the excited utterance exception). 65. See, e.g., Richard S. Schmechel et al., Beyond the Ken? Testing Jurors Understanding of Eyewitness Reliability Evidence, 46 JURIMETRICS J. 177 (2006) (concluding that jurors commonly misunderstand what makes some pieces of evidence more reliable than others). See generally JENNIFER THOMPSON-CANNINO & RONALD COTTON, PICKING COTTON: OUR MEMOIR OF INJUSTICE AND REDEMPTION (2009) (telling the story of a man wrongfully convicted of rape and the racial biases that impacted his trial before he was later exonerated by DNA evidence and developed a friendship with his accuser). 66. See, e.g., FED. R. EVID. 702, 802, See, e.g., id. 403, 404,